The Interaction of TCA, Local Zoning Ordinances and the Courts: Defining a “Significant Gap” in Wireless Service

The interaction of the Telecommunications Act of 1996 (TCA) and local zoning and land use ordinances is an area of law that continues to evolve. The recent case of Liberty Towers, LLC v. Zoning Hearing Board of Falls Township, Bucks County, PA (2011 WL 6091081(E.D.Pa.)), decided in December 2011, provides an analysis of the state of the law in this area and highlights some of the different ways courts have interpreted the requirements of the TCA.

In the Liberty Towers case, Liberty Towers sought a variance to construct a 150-foot telecommunications tower on land zoned for single family homes. Space on the proposed tower would have leased to four wireless telecommunications carriers. There was a single family home on the property at the time the variance was sought, and Liberty Towers sought a use variance to permit the construction of the tower.

At a hearing before the Falls Township Hearing Board, Liberty Towers presented three experts in support of the variance, who testified about the gaps in service coverage provided by certain of the proposed telecommunication carrier-tenants in the area of the tower. After the hearing, the board unanimously denied the application for the use variance. The board determined Liberty “did not introduce any testimony which would indicate that the property could not be used as zoned, nor that it was not currently being used as zoned.” Specifically, the board found that Liberty did not show that because of physical characteristics of the property, there is no possible way to develop the property for a use permitted within the zoning district.

Liberty Towers then brought an action appealing the decision of the board, claiming the board’s decision “has the effect of prohibiting personal wireless service in violation of the TCA” (specifically, 47 U.S.C. §332(c)(7)(B)(i)(11)). Liberty Towers went on to allege the board’s decision was not supported with substantial evidence, which also violated the requirements of the TCA (specifically, 47 U.S.C. §332(c)(7)(B)(iii)). The parties agreed to rely on the record of the board hearing and then filed cross-motions for summary judgment.

Liberty Towers contended the board violated both the procedural and substantive requirements of the TCA. From a procedural standpoint, Liberty argued the position of the board was not supported by substantial evidence in violation of 47 U.S.C. §332(c)(7)(B)(iii). In support of its argument, Liberty claimed the board ignored Liberty’s evidence that there was a significant gap in coverage in the area of the proposed facility. In response, the township stated there was substantial evidence to support the finding that Liberty did not meet the requirements for a use variance under the zoning ordinance. The court noted the arguments that Liberty Towers and the board made in addressing the procedural requirement that there be “substantial evidence” to support the board’s decision were really addressing two separate issues. Liberty was applying the “substantial evidence” requirement of the TCA to the question of whether the board correctly determined if there was a significant gap in coverage. This was an incorrect analysis. Instead, the “substantial evidence” requirement of the TCA is applied to determinations made by the board “in the course of applying state and local zoning law.” In other words, the TCA mandates the board must have substantial evidence when making a decision applying the requirements of its zoning ordinance. In this case, the board clearly had substantial evidence that Liberty Towers was not entitled to a use variance. Liberty provided no evidence to support a contention that the property could not be used for a single family home (the property was, in fact, being used for a single family home). Whether there is a “gap in coverage” is irrelevant to the question of whether there is substantial evidence supporting the decision to deny the use variance under the zoning ordinance.

Liberty Towers’ second contention was that the board violated the substantive provisions of the TCA. Liberty alleged the decision of the board had the effect of “prohibiting the provision of wireless services.” In order to support that claim, Liberty Towers would have to show that (1) there was “a significant gap in the ability of remote users to access the national telephone network;” and (2) that Liberty’s plan to erect a tower was “the least intrusive on the values that the denial sought to serve” to fill that significant gap in service.

There is a split among courts on how to determine whether there is a “significant gap in services.” The Third Circuit follows the “user-oriented approach,” under which the applicant would have to show there are no carriers providing service in the area and this results in a significant gap in service. In contrast, the “multiple-provider approach” does not consider the services provided by other carriers. A “significant gap” exists if only a carrier that seeks to benefit from the application has a gap in its service in that area.

According to supporters of the multiple-provider approach, that approach is consistent with the congressional intent of encouraging competition among service providers (which would in turn help to ensure better service). Liberty Towers argued the court should use the multiple-provider approach because it was recently adopted by the Federal Communications Commission (FCC) in one of its 2009 rulings. In fact, there is the beginning of a split among district courts in the Third Circuit, insofar as one court (Sprint Spectrum LP v. The Zoning Board of Adjustment of Paramus, (2010 WL 4768218)) endorsed the multiple-provider approach in deference to the FCC’s 2009 ruling.

In the Liberty Towers case, the court did not reach the question of whether it should adopt the multiple-provider approach over the user-oriented approach currently favored by the Third Circuit because it determined no “significant gap” existed regardless of which approach was adopted. The court noted “there are no magic numbers or percentages that constitute a significant gap.” Neither the TCA, the FCC, nor the courts have established the “significant gap” threshold. In order to determine if there is a significant gap in coverage, courts are required to consider “the quality of the service in the area and the effect on the users.” This involves a number of factors, including call failure rates and the number of people impacted by the gap. In analyzing the evidence presented at the hearing by Liberty Towers, the court was unable to determine that a “significant gap” existed. While the experts presented by Liberty Towers showed evidence from some (but not all) of the carriers to be located on the tower that indicated there were areas of unreliable service, the court determined the evidence was not sufficient to show that there were significant gaps in the quality of the coverage or a significant number of people were affected by that unreliable service.

Finally, the court found that Liberty Towers was unable to show that its proposed solution (i.e., the new tower) was the least intrusive means of addressing any gap in coverage. The court noted there were other towers within one mile of the proposed tower and determined that Liberty Towers had not demonstrated why it could not use those other towers.

The Liberty Towers case provides a good analysis of how the TCA and local zoning ordinances interact and also shows areas where the law remains unsettled. In particular, how one determines whether a “significant gap” in service exists is an open question, with different courts applying different standards.